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CIVIL PROCEDURE 2—Morrison—Spring 97
I.
Pleadings (504-5)
A.
The Complaint—FRCP 8
1.
Detail Req. Under the Fed Rules: “Notice Pleading”—does D know what the
facts and general legal issues facing him are? Pleading rule allows for liberal
pleading—makes it easier to bring a case. Don’t want to lock the P into the
complaint. Strict pleading rules interfere w/justice—too much emphasis on
lawyers’ skill. If pleading rules are too specific, hard to bring cases. Too
general, too easy to bring complaint. (see Conley, p. 514)
a)
Dioguardi v. Durning (511)—Allowed in P’s garbled complaint b/c it
did reveal the basic nature of his dispute with the D and the specific
incidents on which the claim was based.
(1)
Decker: Pleading was slammed for being too specific
(2)
Mirshak: Doesn’t matter how P makes his claim under Rule 8
(conclusions/facts/evidence), as long as he doesn’t “cloud” it.
b)
FRCP 8a—Eliminates controversies about “cause of action” and
“fact”; issue becomes whether or not the opposing party has gotten
sufficient notice of the action so as to be able to prepare to meet it.
2.
Pleading Special Matters—FRCP 9
a)
Denny v. Carey (525)—9b is not to be read as requiring “detailed
evidentiary matter.” All that’s required is suff. identification of the
circs surrounding the fraud so that D can prepare an adequate answer.
(Problem: how specific can P be w/o discovery? D has access to some
necess info!)
Leatherman: USSC held that federal courts can apply
heightened pleading requirements only for the specific claims
identified in 9b. (5th Cir. had been applying heightened req. to
screen civil rights claims)
b)
FRCP 9b—Why demand particularity for fraud/mistake? Might not
give D enough notice w/o it—puts D in same posit he’d be in for a nonfraud/mistake type of case. D needs to know which mistake! High
specificity means that some cases in which there was real fraud won’t
be brought; w/o 9b you’d get more fraud cases total, both where there
was fraud and where there wasn’t
3.
Pleading Damages—FRCP 9g: P not req. to specify precise money damages (if
diversity, must say over amt in controversy). If you require that P be locked into
an amt, he will ask for astronomical damages. Usu P can amend complaint to
adjust damage amt—court will award damages greater than pleaded as long as
not a default judgment. Damages is part of notice giving; more to specify what
type of relief is sought ($ damages, injunctive relief) than specific amts.
Ziervogel v. Royal Packing (533): In theory, phys injuries and pain &
suff constitute general damages, so revealing at trial the details of the
injuries stated in the pleadings should not bar recovery. Here, though,
P’s inc. blood pressure was deemed a “special damage” (P didn’t
amend her pleading to include this) and held to have been erroneously
admitted.
4.
The Prayer for Relief—FRCP 8(a)(3) and 54(c)
Bail v. Cunningham (537): Court expressed dissatisfaction with the ad
damnum clause—says it’s anachronistic. Says in some suits it’s
necessary to allege a jurisdictional amt, but usu. this is far less than the
ad damnum amt. and can be gleaned from the pleadings/discovery.
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B.
C.
Responding to the Complaint (541-2)
1.
Time Permitted for a Response—FRCP 12a: Rules allow 20 days. MD and MO
allow 30. US govt allowed 60. D counsel routinely ask for extensions (and get
them per profess. courtesy). Rule 6(a) authorizes court to grant the extensions.
FRCP 4d deals w/waiver of service.
2.
Motions to Dismiss—FRCP 12b, 12c, 12d, 12f, 12h
a)
Motions to dismiss b/c of lack of pers juris, improp venue, insuff
process, or insuff service of process are waived if not raised in answer.
B/c these are rights to protect D, they are waivable—therefore makes
sense to dispose of this issue early on in the case.
b)
Motion to dismiss for failure to join indispens. party can be brought at
any time
c)
Motion to dismiss for lack of sub. matter juris—never waivable
d)
12(b)(6): says there’s no legal theory, based on facts pleaded, for
relief—legal claim is not linked to facts. Restricted to questions of law,
not fact; no discovery needed. Standard is high—must appear beyond
doubt that P can prove no set of facts in supp. of his claim which would
entitle him to relief. Can bring a 12(b)(6) motion at any point in the
proceedings—right to do so is never waived. D almost always brings
12(b)(6): delays discovery, may actually get the case thrown out (in any
event sends message that case is friv), drags out case and delays
judgment, might inc. chances for settlement. If there’s a factual dispute
at the time of a 12(b) motion, Morr says a “mini-trial” is held.
e)
Am. Nurses’ Ass’n (543): Did P try to plead too much? Can’t throw
out the case if bad pleadings are mixed with the good. If complaint is
unclear, P should get benefit of doubt (don’t punish P for lawyer’s
mistake).
(1)
If P’s complaint filed in forma pauperis fails to state a claim
under 12(b)(6), it is automatically friv under 28 USC 1915(d).
(2)
Dopico: Ps’ “claim” existed under 12(b)(6) but they could not
obtain the massive, expensive relief they sought. C of A said
that dismissing the complaint was inapp—should only have
done so were Ps clearly not entitled to any relief.
(3)
Shaw: Held that 12(b)(6) motion constitutes adjud. on the
merits, so further actions on the same claim are barred—can’t
modify the complaint and try again.
Amendments—FRCP 15
1.
Moore v. Moore (566): Held that under 15b, Mr. M impliedly consented to try
issues of child support, custody, etc. but not spousal support. We allow
amendment of pleadings b/c sometimes hard to know before trial what to plead;
don’t want to penalize parties for lawyers’ oversight; all the parties are there and
thus it might be ineff/imposs to try the case again.
a)
Hayes: A variance bet the allegations of a pleading and the proof will
not be deemed material unless it has actually misled the adverse party to
his prejudice.
2.
Worthington v. Wilson (573): Old Schiavone req. demanded that the new party
have received actual notice of the action, and that he/she was the correct party in
the action, before the stat of lim had run. As of 1991, however, an amended
complaint will relate back if the new party is aware of the action w/in 120 days
of the filing of the orig. complaint—not from the running of the statute. This
relates back to FRCP 4(m)—rationale is that 120 days is all the notice D would
have had had the complaint been filed correctly in the first place—that’s all the
notice anyone is entitled to. P is okay on this point, but still loses b/c court
didn’t consider changing “3 unknown officers” to named Ds a “mistake.” M
says under 15(c)(3)(A) it’s P’s burd to prove D is not prejudiced.
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II.
Joining Parties and Claims
A.
Counterclaims—FRCP 13a-13f, 19
1.
US v. Heyward-Robinson Co. (604): Held that the Stelma claim was
compulsory under FRCP 13(a) and thus required no ind basis of fed juris. (Had
it been permissive, would have needed an ind. basis of fed juris.) Morrison says
we allow piddly claims in as counterclaims in fed court b/c they’re an intrinsic
part of a case that was consid imp’t enough for fed ct. Bryan is looking at
“conduct of parties” as proof of interrelation of the claims. Morr criticized
Bryan’s decision b/c the judge laid out an extremely broad def of “transaction”
w/o regard to the poss costs of doing so. Compulsory counterclaims must be
raised right away, so if the def is very broad Ds are forced to counterclaim
everything they can poss think of in order to avoid being locked out—very ineff.
2.
Does 1367 suggest that Gibbs is no longer the law; that you can’t go beyond the
constraints of 1367? Too new to tell, but some support for this.
3.
Great Lakes Rubber Corp (608): P sued D in fed ct (div, not fed q claim). D
counterclaimed (a fed q claim) and moved to dismiss P’s claim for lack of
diversity juris. Granted and D’s counterclaim upheld (note that D is still stuck
w/P’s choice of forum). P then brought counterclaim against D which was
substantially the same as P’s original complaint. D said P’s counterclaim should
be dismissed for lack of sub matter juris. P said court had ancillary juris b/c it
was a compulsory counterclaim arising out of the same transac & occurrences as
D’s fed q claim. Held for P. Biggs suggests that ancillary and compul. claims
should be sub. to the same test—Morr feels this is a good idea (see p. 610). If
you fail to include a compulsory counterclaim in your action, you’re barred from
ever asserting the same claim in another action—omitting it carries full res
judicata effect on the issues that should have been included. Thus, most courts
are pretty liberal about allowing you to add omitted counterclaims by
amendment to the answer, even at late stages of the trial. (note that omitting a
permissive counterclaim has no such res judicata effect).
B.
Claims Involving Multiple Parties—FRCP 19, 20
1.
Provident Tradesmens Bank & Trust (644): Morr says USSC is right—rule
19 was designed to protect these verdicts. Morr says start by seeing if everyone
can feasibly be joined—if not, can the case be tried somewhere else? At what
disadvantage to Ps? If everyone can’t be joined, then ask if there’s a way to
alleviate the problem—who’s objecting/whose fault is it? Here, req. of complete
diversity was what made joining Dutcher imposs—1367 wouldn’t allow it.
Court identifies 4 interests in det. whether a party is indispensable (see p. 650 for
distinction bet. “necessary” and “indispensable”):
a)
P’s interest in having a forum—This P has a final judgment to protect
(case is on appeal), so this is a partic strong consid here.
b)
D’s wish to avoid inconsist relief/mult litigation—If D isn’t worried,
why bother to raise the issue at all?
c)
Outsider’s interest—Dutcher is not bound, probably judgment-proof,
and better off staying out of the litigation (he wants the ins. co to pay
them off). Clearly he knows about the case—he testified as a witness.
d)
Interest of courts and society—court basically says you can’t disregard
the loss of what’s already taken place when balancing inefficiencies—
here you’d need to toss a fully litigated judgment and start over! Says
Rule makes it explicit that a court should consid modification of a
judgment as an alternative to dismissal.
2.
Dead man’s rule—prohibits testifying on conversations between the dead man
and the witness. Nowadays judge gives cautionary instructions but does let the
witness testify.
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C.
III.
Interpleader—28 USC 1335, 1397, 2361; FRCP 22 (22 not on exam): requires only
minimal diversity—USSC says Strawbridge is simply a matter of statutory construction.
1.
Pan Am Fire & Cas. Co. v. Revere (672): Held that interpleader is available even
when stakeholder (here Pan Am) claims no liab
2.
State Farm Fire & Cas. Co. v. Tashire (677): Misuse of interpleader. Held
that the ins. co, whose max. interest in the case can’t exceed $20,000 and who in
fact asserts it has no interest at all, isn’t allowed to say that dozens of tort Ps
must be compelled to press their claims—even those not against the insured
which could in no event be satisfied out of the insurance fund—into a single
forum of the ins co’s choosing.
D.
Intervention—FRCP 24: Morr says be careful not to confuse intervention w/whether
you’ve got a claim on the merits. In permissive intervention, courts aren’t forced to jump
thorugh a lot of hoops and can add conditions if they choose.
1.
Brune v. McDonald (684): Intervention is improper where a 3rd party might
eventually be affected by the outcome of a case but will neither gain nor lose in
the direct legal operation of the judgment. Here a judgment for P would affect
Pacific (D’s insurer and the party seeking intervention) only in that P might
eventually sue Pacific. The issues involved in that suit would be different than
those involved in the instant case. Generally speaking, allowing a 3rd party to
intervene undercuts the trad notion that P is allowed to control his suit.
2.
Smuck v. Hobson (690): Intervention is sometimes possible when 3rd parties
don’t seek to intervene until after the initial judgment. Superintendent resigned
after the initial judgment, so he has no interest that will be affected—can’t
appeal or intervene. The parents, though, may intervene b/c even though the
board may have adequately represented their rights at trial, the board’s decision
not to appeal may not have adequately represented their interests. Morr says this
is shady—if you let them in on the grounds the losers decided not to appeal,
arguably nobody is adequately represented, so everyone should be allowed in.
This court doesn’t put too much weight on the “interest” aspect of Rule 24, and
says they’re not looking at the relation bet. Rules 19 & 24. Morr disagrees
w/this—says there’s substantial overlap bet. the 2, and clearly qualifying for one
may strengthen your argument for the other.
3.
Atlantis Dev. Corp v. US (696): Held that the doctrine of stare decisis may
supply that practical disadvantage that warrants intervention of right. If Acme
fails to prevail on its basic contentions, which are essentially the same as
Atlantis’s, Atlantis would need to get the 5th circ to rehear the case en banc or
else get the USSC to grant cert—incredible obstacles. Morr says this is a 3cornered suit in which Atlantis is not being adequately represented.
Ascertaining the Applicable Law (372-3)
A.
State Law in the Federal Courts—RDA (28 USC 1652); REA (28 USC 2072): Morr says
if you’ve got a potential Erie q, first look to see if it’s a state law claim (if it’s a fed q,
state stat is irrel). Then go to RDA. If there’s a potentially applic fed law, then look to
2072 to see if it abridges, etc. any substantive right. No magic formula to det which side
of the substantive/procedural line a rule falls on. Useful to inquire whether forum
shopping is taking place, but the inquiry by itself is never sufficient. Morr says when in
doubt, state rule should win—there’s a concern about fed courts overreaching and we
should be careful about overriding strong state policies.
1.
Swift v. Tyson (373)—Swift, a Maine res, sued Tyson in NY fed court on
diversity grounds to collect on a bill of exchange. USSC held that the RDA
commanded fed cts to follow only the statutory “laws” of the states (or longestablished “local customs”), not the state judge-made law. This in effect meant
that in diversity actions fed courts were following state procedural rules but
applying federal substantive “common law,” which was an amalgam of various
authorities, precedents, etc, that often varied greatly from the state common law.
Thus, a P’s choice of court was often determinative.
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2.
3.
4.
5.
6.
Erie v. Tompkins (375): Held: RDA requires that, in non-fed q cases, fed cts
apply the substantive law that would be applied by the courts of the state in
which they sit. (Says Swift was unconst but doesn’t tell us why!) Court says
“there is no general fed common law.” Erie only applies to substantive laws—
but which ones are these? (in class: use/misuse of the unpub scholarly draft).
Guaranty Trust v. York (383): outcome-determinative test—where adopting a
fed procedural rule in a diversity case leads to a substantially different result than
if the case had been brought in state court, the state procedural rule should be
used. (Here, a stat-of-lim q.)
Byrd v. BR Rural Electric Cooperative (388): Issue was whether to let the judge
determine P’s status as an employee of the D (state law), or leave the issue to the
jury (fed law). Says York outcome-determinative test still valid, but not the sole
test to sep “substance” from “procedure”—preference for state law is not binding
if application of such a law would deprive one party of a strongly protected
federal right, even if the standard “outcome” test is met. Here need to factor in
D’s 7th A right to jury trial.
Hanna v. Plumer—(394): Service-in-hand required by MA; FRCP say ok to
leave w/other suitable person at D’s home. Stat-of-lim had run so can’t do over.
a)
Says you need to look at outcome-det test in light of the policies
underlying Erie—to prevent forum shopping (actually, law shopping)
and inequitable admin of the laws. Here, though the rules for service
are different and outcome-det at this point, it’s not the sort of thing that
would make a P pick one forum over the other.
b)
Fed Rules conflicts: Fed Rule will apply if it’s valid. (and since Cong,
Advisory Comm, and USSC all said it was procedural then you’re
going to have a hard time claiming it’s invalid under 2nd part of REA—
USSC has never held a Fed Rule invalid). USSC has never addressed
the possibility that a generally valid Fed Rule might impermissibly
conflict w/a substantive right in certain contexts.
c)
Harlan concurrence—to him the modified “outcome det” test is an
oversimp. Says the “arguably procedural, ergo constitutional” test will
mean that everything will be deemed procedural, and that this is wrong.
Harlan’s theory ties in w/Erie in that he’s concerned about “primary
conduct” (eg, would be nice if RR knew which precautions to take).
State rule should prevail in situations where the choice of rule would
affect primary conduct—here, applying the fed rule is okay b/c the
conduct has already taken place. (Mor says Harlan’s theory isn’t wrong,
just incomplete—need to factor in whether the rule was intended to be
outcome-det as well)
d)
Morr says that Hanna blatantly violates 2072 because it abridges MA
power—but are service-of-process rules substantive rights?
e)
What about stats-of-lim? Morr says stats-of-lim are rules of decision
under RDA even under the narrow confines of Swift. Says they deal
w/fundamental policy considerations and in that respect are more
substantive than procedural—they’re intended to be outcome
determinative! (contrast w/yellow paper rule.) So is Hanna wrong?
Seems like it, says Morr.
Walker v. Armco Steel Corp. (404): Issue was whether P had to file suit or file
suit and serve process w/in the stat of lim period. USSC said FRCP 3 didn’t
directly conflict w/a state stat that determined an action “commenced” for stat of
lim purposes only when service is made. Court upheld Ragan, which held that
Rule 3 wasn’t intended to govern q’s concerning tolling of statutes of lim. Thus,
a fed court hearing sitting in diversity must apply state law in such a situation—a
Hanna analysis of the validity/supremacy of Rule 3 is inapplicable.
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a)
B.
Why have stat of lim at all? Peace of mind, eliminates obvious cases of
prejudice, odds of arriving at “truth” diminish w/time.
b)
Morr says maybe a key here is substantial vs. insubstantial—maybe
how you serve the D isn’t really a significant difference.
7.
Gasperini: Diversity case. NY state test for excessive jury verdicts is “deviates
materially”; NY fed test is “shocks the conscience.” Held that fed cts must apply
the state standard; Erie precludes a recovery in fed ct significantly larger than the
recovery that would have been tolerated in state ct. Morr feels decision is
wrong—says it’s more a 7th A issue than a cap on damages.
The Problem of Ascertaining State Law
1.
Determining Which State’s Law Governs (414): States are allowed huge leeway
in est choice-of-law rules (eg, Allstate v. Hague).
a)
Klaxon: USSC held that fed courts must apply the conflicts-of-law rules
of the states in which they sit.
b)
Van Dusen: Ds sought to transfer diversity case from PA to MA under
28 USC 1404(a). USSC held that PA law would apply: “a change of
venue under 1404(a) generally should be, w/respect to state law, but a
change of courtrooms.”
c)
Carson v. U-Haul: P transferred action from GA fed ct to KY fed ct. At
the time the suit was brought, action was time barred in KY but not GA.
Held that after transfer KY became the new forum state and its stat-oiflim controlled.
d)
One of the biggest reasons for forum shopping is stat-of-lim—most
states follow their own stats-of-lim for all cases in their courts. There
are exceptions to this (McKenna)
e)
Used to be that Ps wanted cases in fed ct—now it’s Ds who do, partic in
prod liab cases: lots of conservative Reagan/Bush judges in fed ct; Ds
want to remove and then transfer; many prod liab cases are defended by
nat’l firms more used to being in fed ct; now mult Ps and Ds; law of
preemption: cases where D argues that fed law preempts all state laws
(partic common in prod liab), and fed cts more amenable to this
2.
Ascertaining the State Law: Even when you figure out which state’s law to
apply, discerning what the “state law” is is often a problem. Black Letter: fed ct
must apply the law of the state as that law is either declared by statute and interp
by the highest ct of the state, or judicially declared by the highest ct of the state.
When decisions of the state’s highest ct are very old or nonexistent, fed ct may
look to lower ct decisions (if available) or try to declare state law as it would be
declared by the highest state court if the issue were to be presently tried before it.
a)
Mason v. Am. Emery Wheel Works (415): Fed dist court applied state
tort law as artic in a 1928 Miss. decision (no duty where no privity).
Although that decision was never explicitly overruled, a much more
recent decision talked about “modern trends” in the area and quoted
with approval recent authorities in support of the “modern doctrine”
(duty even w/o privity). On appeal, held that the Miss SC would
undoubtedly agree w/the MacPherson decision were the issue put
before it so case remanded to be decided under that standard.
b)
McKenna v. Ortho Pharmaceutical (419): Case in which PA fed ct.
had to forecast OH state law on an issue for which there was no
controlling precedent by the OHSC. Used OH stat-of-lim
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C.
Federal “Common Law”—applies in interstate disputes, admiralty/maritime, int’l US
relations, legal activities of the US
1.
The Traditional Bases of Fed Comon Law
a)
Clearfield Trust v. US (431): The rights of the parties are not to be
determined by state law when an imp’t US interest is at stake.
(1)
Kimbell: Held that fed law controlled the issue but that in this
instance there was no need to est a uniform fed rule, so the
court adopted the state rule as fed law.
b)
Miree v. DeKalb County (437): In interpreting the terms of a K in
which the US is a party, a court may apply state law when the K does
not involve the liability or responsibilities of the US
2.
Interstitial Federal Common Law
a)
DelCostello v. Teamsters (441): Congress didn’t intend for there to be
no stat of lim. Courts usu look to state stat-of-lim, but no close analogy
here. Court could make up its own stat, but that’s not the sort of thing
courts do—they’re adjudicators, not legislators. Also, stat-of-lim is
substantive—we really don’t want to encourage this. USSC decided to
borrow a stat of lim from the fed law—this is a departure from the
norm, although court says it’s not. Six months instinctively feels right
here; court will figure out a way to construct the test to get you where
you want to be. Stevens dissent says that state law should have been
applied under the RDA, but this is a fed-q, not a diversity case!
b)
28 USC 1658—Sets a gen fed 4-yr stat of lim, but the problem is it
applies only to causes of action arising under laws enacted after its
effective date.
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IV.
The Binding Effect of Prior Judgments
A.
Claim Preclusion: aka “true” res judicata. Once a judgment has been rendered, that
judgment is the full measure of relief to be accorded between those parties (or those in
privity with them) on that particular cause of action. Judgment extends to all issues
relevant to that claim of action, whether or not those issues were actually ever
adjudicated. In fed cts res judicata is an affirmative defense—if you don’t raise it, it’s
waived (although Rule 15 allows for liberal amendment). Three elements:
1.
Judgment in 1st action must be final, valid, and on the merits
2.
Parties in the 2nd suit must be identical to those in the 1st (or in privity w/them,
like in Mathews)
3.
The claim in the 2nd suit must include matters properly considered included in
the first action
a)
Rush (1210): Court holds that Rush can’t split her claim. Result of
this case is that you must sue entirely for all of your claims all at once.
Under claim preclusion, all the P’s claims “merge” into a single
judgment—we want to get rid of them all at once. Morr says nothing
wrong w/ parties agreeing to split the cause of action (ie, agreeing not
to make any res judicata claims).
b)
Mathews (1216): P’s causes of action are a little bit different, but claim
preclusion still applies b/c companies have no independent liability—if
the employees (suit #1) didn’t do anything wrong, then the company
(suit #2) couldn’t possibly have done anything wrong. (Morr doesn’t
like the term “privity”—says it’s necessarily conclusory).
c)
Jones (122): As soon as P missed the 1st installment, the entire K
became due b/c of the acceleration clause. But D sued only for two
monthly installments, and that judgment merged w/D’s right to sue on
the remainder. Since the note was satisfied at that time, ownership of
the car passed to P.
d)
Bike hypo/ Alex’s well/leukemia hypo: You sue and then many years
later develop injuries from that same occurrence that you couldn’t
possibly have known about at the time of the first suit. Some states
have a “two-injury rule:” if 1st injury is of a kind that manifests itself
sooner, not later, and the 2nd is a kind that has a scientifically
determined latency period, some states allow you to sue twice.
B.
Issue Preclusion—Here, bar on relitigation lim to issues which were actually litigated
the first time around. Offensive IP: P in 2nd second suit seeks to bar re-litigation of an
issue decided in his favor the first time. Defensive IP: D in 2nd suit seeks to bar relitigation of an issue decided in his favor the first time. Unlike CP, IP does not req. the
same parties as in the first suit. Can involve the same cause of action (direct estoppel) or
a different one (collateral estoppel). Unlike CP, IP doesn’t automatically get you thrown
out of court—but might put a serious dent in your plans (but maybe not, if it’s only a
minor issue)
1.
Judgment in the 1st action must be final, valid, and on the merits (but doesn’t
need to be on the merits if the issue being precluded is exclusively procedural)
2.
Issue must have actually been litigated in 1st action, and decided by the 1st court
3.
Determination of the issue must have been necess. to the court’s judgment
4.
Formerly, mutuality was required (but generally not anymore)
a)
Cromwell (1229): Although at the first trial it was established that
Cromwell didn’t pay for certain courthouse bonds and therefore
couldn’t cash them in, USSC says it’s okay to have a 2nd trial on the
issue of whether he paid for other courthouse bonds—never actually
litigated the subject of that second batch in the first trial, so no IP
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Russell (1235): At 1st trial it was established that D violated one of P’s
patents, but unclear which one. Court says that this issue can’t be
precluded in the second trial because the record lacked the certainty
necessary to establish estoppel. Looking at the transcript from the first
trial might do nothing to clear this up—maybe the judge didn’t
distinguish between the two patents—might not have made any
difference then (although this doesn’t mean the first judge was right not
to distinguish between the two). Can’t just go back and ask the judge
which patent he meant—the potential of a new trial is of course going to
influence his answer. When it’s unclear which issue has already been
litigated, burden of proof rests on the party trying to enforce the
estoppel.
c)
Rios (1238): Basically, B sues A and jury finds that A was neg but B
was contrib. neg and can’t recover—judgment in favor of A. C now
tries to sue A and offensively claim that the issue of A’s neg is res
judicata. Can’t do this because A won—no way A can appeal from a
finding of neg because he won the overall judgment. Because the
finding of A’s neg is immaterial to the verdict (B’s neg was what
mattered), C can’t claim IP
Persons Benefitted and Persons Bound by Preclusion
1.
Mutuality: Premised on the notion that no person should benefit from a judgment
when he stood to lose nothing by it.
a)
Ralph Wolff (1258): Trad model of mutuality: Held that D could not
claim defensive collateral estoppel against P since D was not a party to,
nor in privity w/any party to, the first suit.
b)
Bernhard (1262): Began trend to abolish the mutuality requirement.
Held that the three pertinent q’s in deciding whether to apply IP are
whether:
(1)
identical issues are involved;
(2)
there’s a final judgment on the merits; and
(3)
the person against whom estoppel is asserted was a party to or
in priv w/a party to the prior lawsuit.
c)
Blonder-Tongue: USSC held that a patent holder could be precluded
from relitigating the validity of his patent after it had been declared
invalid in prior litigation against other alleged infringers. Began to
erode mutuality req at the fed level.
d)
Parklane (1269): Can a nonparty to the 1st suit assert offensive
collateral estoppel against a party who was a D in the 1st suit? Unlike
defensive CE (eg, Blonder-Tongue), which promotes judicial economy
by encouraging P to join all potential Ds the first time around, offensive
CE might encourage Ps to “wait-and-see,” resulting in more total lit.
Court adopted a discretionary standard—said that offensive estoppel
should not be used when P could easily have joined in the 1st action or
when it would be unfair to the D. Sets specific guidelines for fed cts.
e)
Can IP ever be asserted against the US govt? Gen, govts are bound
within the particular circuit in which the decision was issued—outside
of that circuit, can declare a “non-acquiesence” policy saying they
refuse to be bound by the decision outside that circuit.
b)
C.
10
2.
Binding Nonparties
a)
In re Multidistrict Civil Actions (1278): Can a party to the 1st suit
assert defensive collateral estoppel against a non-party to the 1st suit?
First case to be tried found TWA neg and Tann not neg. Later, plaintiff
Humphries (not a party in the first case) sued Tann and Tann tried to
claim collateral estoppel on the issue of negligence, saying that their
non-negligence had been proved the first time around. Dist court said
okay, but 6th circ. reversed. Morrison said that the key issue here is that
“courts just don’t have authority to go out and play God”—people need
their day in court, or some functional equiv.
b)
Martin (1284): USSC held that unless you’re duly summoned to
appear in a legal proceeding, or a privy to someone who is, a judgment
cannot affect your legal rights. Here, Ps had ad. opp to intervene in the
first suit but chose not to (Ps’ union was involved in the first suit as
amicus curiae). It’s P’s burden to formally join the Ds—not D’s burden
to intervene when he acquires knowledge of a suit. Holding otherwise
would be inconsist w/Rules 19 & 24 (ie, you weren’t indispensable and
they chose to carry on without you—not your fault they didn’t join
you). Lots of dissenters, and 1991 Civ Rights Act reverses this
holding—prohibits challenges to employment consent decrees if you
have actual notice of a proposed judgment and a reas opp to present
objections, or if your interest is ad. represented in the 1 st lawsuit.
c)
Hansberry (725): Any class action judgment is given full res judicata
and collat estoppel effect. Rationale is that as a class member you may
not literally have had your day in ct, but if the class action was proper
you had a figurative one. DP concerns satis if class members were rep.
adequately and prop notified in the 1st suit. Here, though, those req. not
satisfied—those seeking to enforce the restrictive cov could not be said
to have been in the same class with, or representing the interests of,
those who were resisting enforcement.
11
V.
Class Actions: Rule 23, 703-724, 744-756
A.
In re Abbott Labs: 5th Circ says 1367 overrules Zahn—says that under 1367 a district ct
can exercise supp juris over class members even though they do not meet the amt in
controversy req, as did the class representatives. Rationale is that class actions are not
among the exceptions to supp juris enumerated in 1367(b).
B.
In re Rhone Poulenc: Judge denied motion for cert—took it up on mandamus (Morr
thinks this ruling is probably wrong as a matter of mandamus law). Court says that even
though decision to certify a class is not a final decision under 1291 and thus not
appealable, even nonappealable orders can be challenged by asking C of A to mandamus
the district ct. Court concerned about Ds being essentially forced to settle or else risk
bankruptcy on the basis of one jury trial. Instructions would need to merge the neg
standards of all 50 states and DC—this is a legal standard that doesn’t actually exist.
Judge also wanted to fragment the issues—poss jury inconsistency.
C.
Shutts (747): Don’t need to satisfy the min contacts standard normally applied to out-ofstate D’s in order to obtain a judgment binding out-of-state, absent class members.
D.
Opt-out: You can opt out only if it’s a 23(b)(3) action—if it’s a b(1) or b(2) you’re bound
by the judgment if you’re a member of the class.
E.
Notice: 23(c) applies only to (b)(3) actions—USSC has held that the rule requires
individual notice to all (b)(3) class membs (sub to Mullane standards). For (b)(1) and
(b)(2) actions, though, courts have tremendous discretion in ordering notice—sometimes
hold that no notice at all is required. Costs of providing notice are borne by party seeking
class treatment. If the action is successful the costs may be subtracted from the class
recovery.
F.
Settlement: Under 23(e), a class action can’t be dismissed or compromised w/o court
approval, and notice of the proposed dismiss/comp must be given to all class membs.
G.
Fees: Gen, lawyers get paid out of a common fund created by the recovery from the D.
Or can sue under K law under theory of unjust enrichment. (min rules: where D has acted
in bad faith, pays fees as a sanction. Or, loser pays winner’s fees)
H.
Diversity juris: In div action, only citizenship of named parties counts. Also, each P’s
claim must satisfy the jurisdictional amt req (Zahn)—the class members cannot aggregate
sep & distinct claims (Snyder).
I.
Seven req. before a class can be certified, and burden on P to establish all 7:
1.
There must be a class
2.
Class rep must be a member of the class
3.
Numerosity—joinder of all class membs muct be “impracticable” [(23)(a)(1)]
4.
Commonality—action must raise q’s of law or fact common to the class [(a)(2)]
5.
Typicality—Claims of rep must be typical of those of the class [(a)(3)]
6.
Adequacy—Rep must fairly and ad protect the interests of the class [(a)(4)].
Represenative parties, class lawyer, class itself must all be adequate
7.
District judge must find that the case falls w/in one of the 3 class action
categories described in 23(b)
12
VI.
Discovery: Rule 26(a)(1), (b)(1-3), (c), (d), (e), (f), 30, 31, 33(a), 34, 36, 37, 45
A.
26(a)(1)—Mandatory disclosure of certain types of documents—don’t wait for a request,
just give it over. This isn’t too helpful, b/c the kinds of things encompassed by this is
stuff you’d hand over when asked anyway. Also, the “alleged w/particularity” in
26(a)(1)(A) encourages you to make your pleadings as vague as poss under constraints of
Rule 8. The limitation on experts is useful, though—self policing in that if you don’t do it
right then you don’t get to use your experts.
B.
Background
1.
Grant v. Huff (769): Held that P not allowed to fish for info on D’s ability to
pay a poss judgment b/c that info would not lead to admiss evid at trial. P also
not allowed to get the names/addresses of witnesses D intended to call at trial.
(Under proposed amendment to FRCP, D would have to make his ins. policies
available to P for inspection & copying, w/o awaiting a discovery request.)
2.
Lindberger (770): P needn’t est that the evid sought would be admiss at trial—if
it’s relevant and not protected by trad priv theories, it’s sub to discovery by P.
C.
Discretionary Limits on the Scope of Discovery: Morr says that disc orders are generally
not appealable.
1.
Marrese (773): Protective order allowing Ps to read their files and P’s counsel
to discuss w/Ps the contents of all other files, and depose anyone named therein.
This order held to be an abuse of discretion. Must consider nature and
magnitude of the hardship—purely private interests deserve less weight than
social values such as 1st A right of freedom of association, which protects D’s
membership app files. Posner talks about discretion, but doesn’t say what
standard he was looking for. (note redacting option)
2.
Seattle Times v. Rhinehart (780): USSC says there’s no 1st A right to
disseminate info gained via civil discovery—thus, this protective order was
constitutional. Trial courts have broad discretion in directing the discovery
process.
3.
Protective order hypo—D would ideally like everything under the protective
order—doesn’t want public, press, poss competitors, jurors to have accessto all
their info. Hard for P to argue that at least some of it can’t possibly be
classified, because he doesn’t know what’s there yet! Privilege log—D must
give skeleton descriptions of what the docs are and why they’re privileged.
Typically, Ds far more willing to turn stuff over if it’s sub to a protective order.
(POs can apply to depositions as well). Note that society has a strong interest in
preventing Alana from reinventing the wheel and making everyone who sues her
start from square one. Ethically, she can’t make a deal w/Lee that she’ll give
him a sweet settlement if he agrees not to take any more of these clients.
D.
Mechanics of Discovery Devices: FRCP 26, 30, 31 (785-803; 812-816)
E.
Materials Prepared in Anticipation of Trial—Hickman (820): USSC held that a qualified
priv existed to protect an attorney’s right of privacy as to his “work product”—info
obtained by an attorney in anticipation of litigation. This info is not sub to discovery in
fed cts absent a showing of need. Extends to unwritten as well as written info. See
26(b)(3). But what constitutes work product? Trial judge must balance need for
disclosure against any harm/unfairness disclosure might cause—how imp’t is the info, and
can it be gotten elsewhere w/o undue hardship? Courts split on whether and when
26(b)(3) covers docs containing the results of a party’s investigations made prior to hiring
an attorney or the initiation of litigation. Also spilt on the degree of protection to be
given to “opinion” work product.
13
VII.
Trials—FRCP 38, 52
A.
Might favor a jury trial b/c juries are easier to convince/confuse than judges; damages; if
you win and the decision is appealed, having the jury verdict gives you more deference on
appeal. Might favor no jury when technical & complicated; worried that a jury will screw
up a case that’s primarily legal in nature (and it’s more likely that the law issue will be
ventilated on appeal than if it was a jury trial—scope of review of a jury verdict is very
limited); more efficient; more flexibility; might have a good judge; lawyers might be more
used to trying non-jury cases; in most juris, can get a trial before a judge sooner than you
can get one before a jury.
B.
Jury—Where Congress says “no jury trial,” this is usu upheld. Where Cong has not
explicitly spoken, courts have tended to take a broad view of what the 7 th A provides; jury
trials are gen. seen as a good thing. 7th A does not generally apply to state ct proceedings.
Level of specificity is low in general verdicts (Ps prefer these) and high in special verdicts
(Ds prefer these).
1.
Background (921-927): “clean-up doctrine”: when a case had both legal and
equitable aspects but the equitable aspects dominated, the equity court would
dispose of all legal issues “incidental” to the primary equitable claim, w/o a jury
trial. Today it’s a general maxim that every legal issue, whether or not incidental
to an equitable claim, carries with it the right to a jury trial.
2.
Beacon Theatres (927): D was preparing an antitrust suit (law) against P when
P, probably to deny D the right to a jury trial that would have existed in the
antitrust action, beat D to court and filed a declaratory judgment action (equity)
against D. D then counterclaimed w/the antitrust suit it had been planning to
bring. Held that prior to the trial of any equitable issues by the court, all factual
issues raised by legal aspects of the case must be tried to a jury.
3.
Dairy Queen (933): Clean-up doctrine explicitly overruled—held that a right to a
jury trial exists as to any issue that is an element of a claim cognizable at law,
even if the equitable elements of the case predominate.
4.
Katchen (935): USSC upheld the summary juris of the bankruptcy court. The
court noted that bankruptcy suits are not under the scope of the 7 th A (not suits at
common law), but also rested its decision on the power of Cong to est a legis
court under Art I Sec 8 in order to provide for a prompt trial of a disputed claim
w/o the intervention of a jury.
5.
Chauffeurs, Teamsters, etc v. Terry (957): Marshall looks at 2-part test: 1)
look for an analogous cause of action that existed in the 18th cent to det whether
the nature of the claim is legal or equitable. 2) Det whether the remedy sought
(back pay) is legal or equitable (#2 more imp’t). Says in step #1 the factors are
in equipoise—duty of fair rep is like claim against trustee for breach of fiduciary
duty (equity), but Ps collective bargaining agreement is like a B of K claim
(legal). Step #2—back pay is a legal remedy; thus, scale tips in favor of jury
trial. Brennan says historical test should be simplified, but he chooses to
disregard it entirely! Kennedy (diss) says he likes the jury trial but his approach
will limit the # of jury trials—disagrees that whenever a cause of action contains
legal issues a jury trial is required.
C.
Nonjury—Roberts (1049): Judge is supposed to make findings of fact and conclusions of
law—hard to tell which is which. Here we’re concerned that the judge missed
something—sounds like the Court of Appeals is telling judges to follow 52(a). Will aid
in appeals if the judge goes through all the steps (writing instructions serves the same
purpose in jury trials). “clearly erroneous”—appeals ct can’t reverse findings of fact just
b/c they would have ruled differently. Trial judges have a better sense of how all the
“pieces” fit together.
1.
Anderson: “clearly erroneous” standard applies to all factual findings, not just
credibility determinations (although partic deference should be given to these)
14
D.
Taking the case from the jury—12(b)(6), Rule 50: Most trial judges do send the case to
the jury, then grant a JNOV if necessary (unless D’s case will be very long or something).
People want their day in court, and they want a jury to decide—people feel cheated and
are more likely to appeal if they feel the judge has cut them off.
1.
Galloway (1008)—intro & part III: In 1791 at common law there were several
methods for taking a case from the jury. 7th A merely perpetuates the common
law right to jury trial, so not unconst for modern fed ct to take the case from the
jury via a directed verdict. Even though the modern devices call for slightly
different standards of proof, this is not grounds for objection—7th A doesn’t
require that modern jury procedure remain stagnant as judicial science advances.
As long as a modern device isn’t clearly an invasion of what was a province of
the jury in 1791, no grounds for complaint.
2.
Hutchinson (handout): Said a new trial on the ground that the verdict was
against the weight of the evidence wasn’t warranted, but did remand for a new
trial on the issue of actual and punitive damages. Disagreed w/trial court’s
finding that punitive damages were unwarranted—if you believed P’s story, as
jury did, police used excessive force—akin to an int’l tort. Court doesn’t say
where the line of “excessive” falls. Here, having a new trial would be very
inefficient. (Morr says not many cases where a liability issue will be retried.)
“nisi remittitur”—we’re having another trial unless P is willing to accept 25K.
Can judge do a reverse remittitur, eg if jury awarded $1.00 could judge say “25K
or new trial”? In fed ct, absolutely not (in some states it’s okay). Seems like a
double standard; why can judge set amt one way but not the other?
15
VIII.
Summary Judgment—Rule 56: How does SJ differ from 12(b)(6) motions to dismiss? 12(b)(6)
you’re attacking the legal sufficiency of the pleadings; SJ you’re saying that factually your
opponent has no case, regardless of what his pleadings say (eg, P never used my product).
Standards for SJ and directed verdict are the same. Hornbook says inadmiss evid may not be used
to support or challenge a SJ motion. From the trial judge’s perspective, denying SJ will result in
more proceedings but a possible settlement. Granting SJ will mean appeal is very likely. Failure
to grant SJ may result in an irretrievable loss of resources or privacy (discovery). People move for
SJ to avoid having further discovery which might turn up new problems, and to avoid having to
answer allegations. Key questions: Is there a genuine issue of material fact, and could the jury
responsibly find for the non-moving party? In NY, courts have required moving party to be
specific about what is not in dispute; opposition may then answer these. Giving up certain issues
on motion for SJ does not forfeit your right to try those issues later at trial.
A.
Lundeen (882): Whether decedent changed his will could be a question of law or one of
fact. In this case there’s no dispute about the meaning of the law—some question about
what decedent actually did. Ins co has no proof he actually changed the forms. W1’s
problem is that W2’s testimony rests all with one guy—W1 might have a chance if the
case went to trial (jury might not believe him). But W1 can’t beat something (suspicion
the guy is lying) with nothing (no evid to support this). Message of this case: obligation
of the party opposing SJ to come forward w/factual material upon which a jury could have
a reas doubt.
B.
Adickes (892): If the info presented by party seeking SJ, taken as true, fails to establish
that no factual dispute exists, SJ will be denied even if the opposing party has presented
no counter-evidence.
C.
Celotex (893): USSC held that SJ movant must either affirmatively negate the
nonmoving party’s claim, or demonstrate to the court that the nonmoving party is unable
to prove an essential element of that claim. The burden is on the nonmovant to go
forward with evidence as to his claim, not on the party seeking SJ. Here, moving party is
trying to prove a negative—that evidence is in control of the P.
D.
Anderson (901): Defamation suit in which P had to est. the presence of malice by clear &
convincing evid rather than just preponderance of the evid. Ds (pub co) moved for SJ,
and USSC took into account P’s heightened evidentiary standard—thus increasing P’s
burden of showing that SJ wasn’t warranted. Court said that SJ standard mirrors the
standard for a directed verdict in that judge has to decide if there is but one reasonable
verdict that can be reached from the evidence presented. Thus, the inquiry involved in
ruling on a SJ motion (or for a directed verdict) necessarily implicates the substantive
evidentiary standard of proof that would apply at a trial on the merits. Maj says that
judge is not to “weigh” the evid in SJ motions, but Brennan dis asks how a judge can
possibly factor in the heightened evidentiary standard w/o weighing the evid. Says getting
into these complexities will defeat the whole purpose of SJ and result in a full-blown
paper trial on the merits. In class—how does a judge say “I think it’s 51%, but not 61%”?
This gatekeeping function may give the dist. court judge too much power.
1.
Matsushita: USSC held that the absence of any plausible motive to engage in the
conduct charged is highly relevant to whether a “genuine issue for trial” exists
under the meaning of 56(e).
16
IX.
Appeal—FRAP 38 (compare w/old and new FRCP 11), 28 USC 1291 & 1292: Problems w/the
interlocutory appeals system (eg, New York): delay; unnecessary appeals (parties may settle; party
winning the interloc appeal may ultimately lose and appeal the final judgment anyway). But—you
might be able to dispose of the case at an early stage or correct in advance an error that might
otherwise require a new trial. Note that denial of SJ is not a final order; granting of SJ is.
A.
Lib Mut Ins Co (1125): A complaint resting on single legal theory applied to one set of
facts but seeking several remedies presents only a single claim. Thus, 54(b) not applic—
limited to multiple claim actions in which some but less than all of the claims have been
finally decided. B/c the district court’s grant of partial SJ limited to the issue of D’s
liability was interlocutory, no app juris under 1291—1291 applies only to final
judgments. Nor is there app juris under 1292: appellants weren’t seeking/refused an
injunction under (a)(1), and under 1292(b) appears that they didn’t apply w/in 10 days
and even if they had no evid that court would have exercised discretion to hear the appeal
(app court thought they had 1291 juris and thought they were obliged to hear the appeal)
Note that neither party questioned C of A’s juris—USSC raised this issue on its own.
B.
Exceptions to the Final Judgment Rule: Cohen (1136)—“Collateral Order Doctrine”: In
order to satisfy the collat order doctrine, the order must 1) conclusively determine the
disputed question, 2) resolve an important issue completely sep from the merits of the
action, and 3) be effectively unreviewable on appeal from a final judgment. Here, USSC
upheld the right to appeal from a denial of a motion to direct P in a shareholder derivative
action to comply w/a state statute requiring the posting of security for costs. The district
court decided that fed law and not state law should apply to det whether P must post a
bond—appealable because it raised issues of choice between state and fed law, which
were completely sep from the merits of P’s claims of misconduct by corporate officers.
1.
Lauro: Lauro moved to dismiss on grounds that it could only be sued in Naples.
USSC held that 3rd condit of Cohen not satisfied; claim would be “adequately
vindicable” after final judgment, as much so as a claim that the court lacked IPJ
over D.
2.
Van Cauwenberghe: Denial of a motion to dismiss on forum non grounds, or on
grounds that an extradited person is immune from civil process, is not an
appealable collateral order.
3.
Ryan/Cobbledick: A trial judge’s order to turn over certain docs or respond to
some other discovery demand is not an appealable collateral order. But if you
refuse to obey the order and are held in contempt, you can appeal the contempt
judgment. But an exception made in Nixon—would be unseemly to force the
pres to disobey the court’s order so as to obtain review.
4.
Perlman: Subpoena for docs issued to 3rd party and the owner of the docs was
protesting their release—appeal allowed b/c unlikely that the 3rd party would risk
contempt to protest release of the docs.
5.
USCC v. Abortion Rights Mobilization: A nonparty witness can challenge the
court’s lack of sub mat juris in defense of a civil contempt citation, even w/o a
final judgment in the underlying action.
6.
Forgay: Order to deliver held appealable even before the conclusion of the
accounting b/c of the irreparable injury that might be sustained if the property
were disposed of by the assignee in bankruptcy before the accounting was
completed.
7.
Brown Shoe: The appellate court can raise the issue of finality sua sponte and
the parties’ consent is immaterial.
17
C.
D.
Coopers & Lybrand (1140): A determination that a lawsuit may not be maintained as a
class action pursuant to FRCP 23 is not a final decision under 28 USC 1291 and therefore
is not appealable as a matter of right. A decision whether to certify a class is closely tied
up with the merits of the case, in that court must determine whether there are common
questions of fact and law and whether the common questions predominate. Court shoots
down “death knell” doctrine.
1.
Risjord: USSC held that an order denying a motion to disqualify counsel could
not be appealed under the Cohen exception b/c there was not suff evid that the
ruling would be effectively unreviewable after a judgment on the merits.
Discretionary Appeals—Atlantic City Electric Co (1156): D posed interrogatories to P
concerning whether damages sustained by P were passed on to P’s customers. P’s
objections to the interrogatories were sustained, and D applied to the C of A for pretrial
leave to appeal. D’s application was denied on the grounds that it was not appropriate to
decide this question of law before final judgment—might result in massive discovery
which would overwhelm the already extensive pre-trial proceedings. D will have opp to
appeal this issue after final judgment, if necessary. Granting the application would only
delay the ultimate disposition of the case.